--Q&A 2/23/06--
Q- I'm from Canada and own my own business. Can I open a company in the U.S. and move down south or can I buy an existing business and how many people do I have to employ? Is there a minimum investment or anything else you can help with?
A- If your company in Canada has been doing business for over a year, and you have filled a managerial or exeucitve role that whole time, and then you can come to the U.S. and open a company that you also own a controlling interest in, then you could be qualified for an L-1 for a start-up company.
You would also have to show that within a year, the company will be able to support you in a managerial or executive role, meaning you have to plan to hire and expand operations. There is no specific amount of money that you have to invest in the related U.S. company, but it has to be enough so that you can convince Immigration that the U.S. company will grow enough in one year to support you in a managerial or executive role. It also has to be a viable company that's regularly providing goods or services to customers. Generally, you would provide a business plan to show how you plan to do the expansion.
Q- I know that my I-130 has been approved August 2004. I want to know the month and year when I can finally arrive in the USA. I'm a sister of a US citizen and my case type is F4.
A- It is impossible to predict the month and year when you will be eligible for an immigrant visa. Currently, family based fourth preference visas are available to individuals whose I-130 petitions were approved in 1993 (or, if you were born in Mexico, in 1987; or if you were born in the Philippines, in 1983). It could take up to 20 years for your priority date to become current. Once it is current, you can file your immigrant visa application with the U.S. consulate in the country where you reside.
Q- I would like to know if I had the necessary qualifications for a nursing position in the USA, but had overstayed my tourist visa in the past, would this affect my application for a work visa?
A- All nonimmigrant visa applicants are subject to INA 214(b), which requires you to have "nonimmigrant intent" in order to enter the U.S. The fact that you previously overstayed a visa casts doubt on whether you really have nonimmigrant intent. See our article on nonimmigrant intent.
When you present a new visa application, you would need to be totally honest with the consular officer, and explain why you overstayed. If your overstay was not very long, you should emphasize this in your account. Tell it as a story and show why you would not overstay a visa in the future. Then carefully document your intent to enter the U.S. TEMPORARILY on the work visa. (E.g. show that you have a residence abroad; show that your family resides abroad; etc.) Provide anything you can to show that you intend to return abroad at the end of your stay.
If you are applying for an H-1B visa, you are permitted to have dual intent, meaning you can intend to apply for permanent residency. Nevertheless, you are still subject to INA 214(b) as stated above. The fact that you previously overstayed a visa will cause a consular officer to pay more attention to the nonimmigrant intent issue than they ordinarily would for an H-1B petition. However, it is not impossible to overcome this.
Please note, I am assuming that you did not trigger the three or ten year bars by your overstay. See our article on the three and ten year bars. If you did trigger one of these bars, then you would need to get a waiver, or wait for the bar to run, before you could apply for readmission to the U.S.
Q- Is it true that when you pass NCLEX, you will be barred from entering the USA using a tourist visa? Does airport immigration really know this detail? I plan to go to the USA to look for a sponsor and get interviewed, then go back to the middle east to continue working because I do not want to be jobless while applying for a job in the US. Do you think it is possible?
A- As an applicant for a B-2 (visitor for pleasure) visa, you are required to prove that you have a foreign residence which you have no intention of abandoning, and that you do not intend to work in the U.S. If you take the NCLEX exam it is with the intent of obtaining a U.S. work visa. However, this fact alone is not enough to conclusively bar you from obtaining a visitor visa. You will have to prove to the Consular Officer what your intent is in coming to the United States. It is perfectly permissible for you to enter the country to attend job interviews, then leave the U.S. and return on an employment-based visa.
You will need to present sufficient proof to the US Consulate that this is your intention. For example, a round trip plane ticket would be good evidence that you intend to depart from the United States after your job interviews. You should also present evidence that you own or rent a residence abroad; that you have sufficient money to support yourself for a short period of time in the US as a visitor so that you will not need to resort to unauthorized employment while in the U.S. Also, if you already have job interviews lined up, you should obtain letters from those potential employers stating that you have an interview scheduled. Or alternatively, bring copies of US newspapers or print-outs from web sites showing the advertisements for jobs that you intend to apply for. The more evidence that you can present to show the temporary nature of your trip to the US, and to show that you do not intend to work during that period, the better.
Q- I am willing to file for my naturlization based on marriage to a US citizen soon, and I am 34 years old. I didn't register for selective service when I was supposed to because I was illegal back then and I was 25 years old. Will that affect my naturalization application?
A- As an illegal alien you were required to register for Selective Services between ages 18 and 26. When you naturalize you are required to show that you have good moral character. Whether or not you registered for Selective Services when you were required to do so goes to the issue of whether you have good moral character or not. However, USCIS only looks at the five-year window immediately preceding your application for naturalization to determine whether you have good moral character or not; events occurring outside that 5 year window are irrelevant unless they tend to show a pattern of immoral behavior continuing into the present.
In your case, you turned 26 (and thus ceased being required to register) well over than five years ago. The fact that you failed to register must be reported on your N-400 application, but it would not generally be a grounds for denying the application, because it no longer has a bearing on whether you have good moral character or not.
Q- I heard from someone about the preparation and filing of the necessary applications electronically with the U.S. Department of State (this allows the background screening process to begin prior to your visa appointment). If there is any kind of electronic filing, does anyone know or have experience with this?
A- Most consulates now require that you fill out form DS-156 electronically. Once you make a visa appointment, the consualte should send you paperwork directing you do do this, if you are required to. The web site for the e-filed forms is http://evisaforms.state.gov/. Once you fill the DS-156 online, you print it out and take the paper copy with you. The DS-157, if required, is not done electronically.
Q- I am currently on an H-1B which is scheduled to expire in March 2006. I will apply for extension based on my labor certification application, filed in March 2004 (EB3 category). I got a driving ticket for a serious speed violation in Iowa. By law, Iowa suspends the license for 6 months. Will it create a problem for my H-1B extension? Will it create a problem with the visa stamping? Will it create any issue during the green card process?
A- So long as you were just given a speeding ticket and were not arrested or convicted of a crime, the issue should not come up on your H-1B petition or visa application. The application forms for a green card also only ask about arrests and convictions, and not about traffic violtions. If it was serious enough that you were arrested and charged with a crime, then you do need to report it on Form DS-156 for the H-1B visa application, and on the permanent residency application forms.
